BOOK REVIEW COMPTE RENDU DE LECTURE 163
Canadian Extradition Law Practice
by Gary Botting Markham, LexisNexis Canada, 2005. Pp. 720.
In its modern origins,1 extradition was a fairly simple process by which sov- ereign states could transfer fugitives from criminal justice between and among each other.2 The "laws" which governed these transactions were mostly of the internation- al variety, constructed by way of treaties setting out the agreed conditions under which extradition would be undertaken, which were in turn domestically imple- mented in the appropriate manner.' The "crime control" agenda which underpinned extradition was obvious: it was mutually beneficial for states to cooperate in this way so as to uphold international comity and maintain the domestic and international social order that crime was deemed to threaten. From its outset, however, a heavy policy component of extradition law and practice was the state's interest in protecting the individual who had come onto its territory, alleged or convicted criminal though he or she might be. Traditionally, states jealously guarded their own criminal jurisdiction and were reluctant to take any action that might be seen as enforcing the criminal law of another state. Coupled with this was the desire not to become involved in the internal affairs of even a treaty part- ner state, a concern raised particularly during the 18th and 19th centuries when indi- viduals were often as likely to be fugitives from a difficult political situation as from any criminal activity. These concerns were particularly paramount among common law states which, unlike civilian countries, extradited their own nationals to face for- eign process. Thus a set of international law principles developed which accorded cer- tain protections to the individual in the extradition process. By way of example, one could look to the "political offence" exception 4 or the rules of "specialty"' and "dou-
I. The extradition regimes of the present day are generally held to have their origins in 18th century Europe. See generally Christopher Blakesley, "The Practice of Extradition from Antiquity to Modern France and the United States: A Brief History" (1981) 4 B.C. Int'l. & Comp. L. Rev. 39. 2. See generally Geoff Gilbert, TransnationalFugitive Offenders in InternationalLaw: Extradition and Other Mechanisms (The Hague: Kluwer Law International, 1998) c. I [Guilberti. See also Anne Warner La Forest, La Forest's Extradition to andfrom Canada, 3rd ed. (Aurora: Canada Law Book, 1991) c. 1-2 [La Forest, Extradition]. 3. In common law states such as Canada, treaties must be "transformed" into domestic law by way of imple- menting legislation. See generally Hugh Kindred and Phillip Saunders eds., InternationalLaw: Chiefly as Interpretedand Applied in Canada, 7th ed. (Toronto: Emond Montgomery Publications, 2006) c. 4. 4. Gilbert, supra note 2, c. 6. 5. Ibid., c. 5. OTTAWA LAW REVIEW REVUE DE DROIT D'OTTAWA 37:1
ble criminality"6 . However, these mechanisms were truly meant to be protective of the interests of states themselves, and protection accorded to fugitives was more of a knock-off effect.' As extradition law and practice developed, this juxtaposition of internation- al criminal cooperation, on the one hand, and protection of the individual, on the other, continued to provide the foundation. The tension between these two goals was manifested, yet extradition schemes the world over continue to display an often finely tuned balance between what Professor La Forest has termed the "liberty" and "comity" interests at stake.' As judicial involvement in extradition evolved and became standardized, an extradition "practice" emerged at the domestic level, though given the infrequency with which extradition occurred, the practice was both rarefied and obscure. Over the last 25 years, concern with the rise of international and transnation- al crime spurred on governmental efforts to develop and streamline the tools of inter-state criminal cooperation. Accordingly, extradition, as the central instrument in these efforts, assumed more prominence. At the same time, there was increasing awareness that this process engaged human rights concerns in a significant way.9 In particular, individuals had no standing at international law to assert or invoke any of the treaty protections, these being matters of executive determination at the inter- state level, and people in most states did not have recourse to an external human rights body whose decisions could actually be given effect to prevent an extradition. 10 Therefore, the domestic extradition proceeding was effectively the last line of defense for the fugitive, the place of final redress for persons who alleged that extra- dition to a particular state would violate their fundamental rights-the right of lib- erty no less important, perhaps, than any other. The tension between liberty and comity has thus recently intensified, and while extradition practice remains complex, it could not seriously be said to be languishing in obscurity any longer. In Canada, extradition law and practice have a long history, extending back to the Jay Treaty of 1794 concluded between Great Britain and the United States. Of late, however, the most significant development has been the introduction of the new ExtraditionAct' I in 1999. The new Act was the brainchild of the federal Department of
6. ibid., c. 3. 7. Though they were often not inconsiderable as a means of indirectly protecting human rights. See William Gilmore, "The Provisions Designed to Protect Fundamental Rights in Extradition and Mutual Legal Assistance Treaties" in InternationalCo-operation in CriminalMatters: Balancing the Protection of Human Rights with the Needs of Law Enforcement (London: Commonwealth Secretariat, 2001). 8. See Anne Warner LaForest, "The Balance Between Liberty and Comity in the Evidentiary Requirements Applicable to Extradition Proceedings" (2002-03) 28 Queen's L.J. 95 [La Forest, "Liberty and Comityl. 9. See generally John Dugard & Christine Van den Wyngaert, "Reconciling Extradition With Human Rights" (1998) 92 A.J.I.L. 187. Specific to the US context, see Christopher Pyle, Extradition, Politics and Human Rights (Philadelphia: Temple University Press, 2001). 10. The exception being, of course, those states that are party to the European Convention of Human Rights, compliance with which is overseen by the European Court of Human Rights (and, until recently, the European Commission) whose decisions must be given actual effect. 11. S.C. 1999, c. 18 [Act]. BOOK REVIEW COMPTE RENDU DE LECTURE 165
Justice, which had expressed concern that the previous legislation (which, in form and substance, dated back to 1877) was "antiquated" and created difficulties for many states-notably civil law countries 1 2 to obtain extradition from Canada.' I The goal was no less than to ensure that "Canada will not be a safe haven for fugitives from jus- tice."'4 To this end, the extradition process was significantly modified and consolidat- ed, clearly with an eye towards accommodation of treaty partners. A high-quality explanatory text co-authored by three Crown (or former Crown) extradition practi- tioners, which provided a detailed concordance between the old and new legislation, and explained the new developments, was published in 2002.15 . The year 2002 also saw the beginning of shots across the bow of Justice Canada by commentators who were concerned that much of the "protective" aspect of extra- dition law and practice had been stripped away by the new legislation, in favour of Canada being seen as a "leader" in the fight against international and transnational crime. 6 No less an authority than Professor La Forest, author of the leading treatise on extradition in Canada,' I opined that the new legislation had unduly "limit[ed] the liberty interest in favour of comity" and undermined due process, without a clear case being made for doing so.II Notably, this commentary emerged in the wake of a set of significant extradition decisions by the Supreme Court of Canada 19 and the Ontario Court of Appeal,20 which saw those courts reverse high-profile extradition decisions on the basis that the actions of extradition courts and/or of the Minister of Justice had undermined the protective function of extradition proceedings in a manner which contravened the Charter21. Even in the face of such laudable decisions, however, it became clear that Canada generally remained blissfully unaware of the international legal trend toward the proposition that extradition to face foreign legal process direct- ly engaged state obligations under international human rights law.22
12. See La Forest, Extradition,supra note 2 at 151-6 1. 13. House of Commons Debates, 135 (8 October 1998) at 9004. 14. Department of Justice, News Release, "New Extradition Act Comes Into Force" (17 June 1999), online: Department of Justice Canada
The foregoing long-winded walk through some extradition basics is relevant for this reason: with the publication of Canadian Extradition Law Practice23 in 2005, British Columbia lawyer and author Gary Botting has waded into this extremely contentious fray. The intriguing thing is that he has done so not with a treatise on extradition law, but with a book that resembles nothing more than a conventional "practice manual" which would fit nicely on the shelf beside "Federal Court Practice 2005" or another such text. This, however, is decidedly a book that should not be judged by its cover. In terms of its format, the book is a thorough and useful manual for lawyers practicing in the extradition area. It is divided into two parts. The first half compris- es a heavily annotated version of the Act that tracks the organization of the legislation itself. Each annotation provides, where relevant, content under the headings "Commentary," "Cross-reference," "Treaties," "Former Acts," "Practice Note" and "Case Law." As these headings would suggest, the annotations provide the necessary linkage between parts of the Act and other relevant instruments (treaties, older leg- islation, other relevant statutes), as well as explaining and contextualizing the role and function of the particular section. The second half of the book is a group of appendices which collect together useful documents: up-to-date versions of all multilateral and bilateral extradition treaties to which Canada is a party, older treaties and legislation (particularly the for- mer ExtraditionAct and Fugitive Offenders Act), and those forms particularly relevant to this area of practice. Again, from the practitioner's point of view, the book is nothing short of 24 excellent; a match in most regards for the only other resource currently available. It has a number of useful features, including a concise list of statutory limitations under the Act25 and aTable of Cases 26 cross-referenced to both the legislation and rel- evant treaties-the latter containing a number of obscure or unpublished decisions from Canada, the US and the UK.The case law annotations for each section of the Act are thoroughly researched and usefully summarized, and the annotations themselves contain interesting bits of historical information. Under Section 2, for example, the reader learns that the Jay Treaty provisions on extradition covered only murder and forgery, "the latter being a pet peeve of President George Washington, who had borne the brunt of a series of forgeries purporting to be confessional letters from him to his wife. 2 7 One mild criticism of the functionality of the book is that the index is too brief, as a thorough and multi-layered index is indispensable in this context as in so many other areas of criminal practice. Also, it might have been helpful to provide a general overview of the complex extradition process, perhaps by way of a flow chart or similar mechanism.
23. Gary Botting, Canadian Extradition Law Practice (Markham: LexisNexis Canada, 2005). 24. Krivel etal., supra note 15. 25. Botting, supra note 23 at xv. 26. Ibid. at xvii-xxvi. 27. Ibid. at 30. This kind of detail is no doubt attributable to, and drawn from, Botting's recent book, Extradition Between Canada and the United States (NewYork: Transnational Publishers, 2005). BOOK REVIEW COMPTE RENDU DE LECTURE 167
There is another side to CanadianExtradition Law Practice,however, for as much as it is a standard "practice manual" it is also a detailed, section-by-section critique of the Act-the tone of which can be described as harsh, if not vitriolic. This is evident before one even cracks the annotated Act portion, as the volume opens with an essay (entitled "Overview")28 that reads as a scathing indictment of the new Act and the new legislative and policy approach to extradition it ushered in. It focuses, logically, on extraditions between Canada and the US, which make up the majority of cases heard by this country's courts, but uses these cases to attack the foundations of the "new" extradition law. Invoking Professor La Forest's important essay,29 Botting emphasizes that the Crown's interest in international comity in the criminal cooperation area now far outweighs the protection of the individual; but, he says, six years in, that this is only part of the problem: When these changes are combined with rigid principles of stare decisis and narrow statuto- ry interpretation, Canadian extradition procedure has become little short of repressive. Canadian courts from the top down have used the new provisions, in combination with precedents predating the Act, to perpetuate judicial fictions and conceits which constitute 3 dangerous incursions on the liberty interests of anyone caught up in the extradition web. 0
The author's disgruntlement with specific parts of the Act is made clear in the Annotations. By Botting's estimation, an extremely large number of provisions are ripe for Charter challenge. Moreover, both the "Commentary" and "Practice Note" categories are often used as vehicles for blunt, often colourful opinions on the pro- priety, coherence or desirability of the section in question. Indeed, these are so numerous that they can be found by opening the book at random. For example, open- ing to Section 37 (dealing with how the extradition court is to determine that the person before the court is the person requested) reveals the following under "Practice Note":
Judges might be less vulnerable to risking their own credibility and more likely to avoid casting themselves as witnesses in the proceedings if they skirt the issues raised by this sec- 3 tion and insist that the Attorney General call witnesses to make the physical comparison. 1
Botting's idiosyncratic approach is, on occasion, the source of some of the text's limitations. A particular bugbear he identifies in the new legislation is that it has diluted or even dispensed with the double criminality requirement, to the point that "Canada has lost sight of the entire purpose of extradition."32 He largely attributes this to the fact that the Act (as well as, for example, the Canada-US Extradition
28. Ibid.at 1-9. 29. La Forest, "Liberty and Comity", supra note 8. 30. Botting, supra note 23 at 6. 31. Ibid. at 127. 32. Ibidat 195. OTTAWA LAW REVIEW REVUE DE DROIT D'OTTAWA 37:1
Treaty) has extended the ability to extradite beyond the traditional category of "crimes" to "offences," to the extent that "even traffic offences may become the sub- ject of extradition ." This is something of a tempest in a teapot, as this development reflects the fact that contemporary extradition practice has had to move beyond traditional crimes to ensure it catches certain kinds of statutory offences, which is not shocking or altogether unwarranted. The central goal, that the emphasis be on the fugitive's alleged "acts or omissions, not on the precise requirements of the criminal laws of each State"14 is still upheld, since the conduct alleged must still constitute an offence under Canadian law before extradition can be granted.35 Similarly, he gives great effect to the fact that the Act, consistent with earlier Supreme Court of Canada decisions, does not provide for the protection of the pre- sumption of innocence per section 11 (b) of the Charter.16 However, it is highly arguable that the presumption of innocence never did play much of a role in domes- tic extradition proceedings, since the requested state is not the forum for the ulti- mate trial and the object of protecting the individual does not require the operation of this presumption in a substantive way. Such limitations do not detract from the solidity and usefulness of the book, CanadianExtradition Law Practice. One can agree with much of the editorial content (as, indeed, I do) while noting that it is highly unusual for this kind of book. I am hesitant, however, to criticize it for its overt partiality, not least because the author is implicitly candid about his leanings. This is basically a defense-side text, a kind of resource not unknown to Canadian criminal law literature, and one that balances the playing field in an area where the only other book available exhibits something of a Crown bias.3 7 This is a regrettable state of affairs in some ways, but perhaps necessary until a new edition of Professor La Forest's excellent but out-of-date text3 8 is released. Perhaps more importantly, Botting has put his finger on just how troubling the intersection between international criminal cooperation and human rights can be. The implications of misaligning the balance between inter-state comity and individ- ual human rights can be profound, and any expansion of Crown powers bears watch- ing. Witness the recent arrest of marijuana activist Marc Emery, on an extradition warrant pursuant to US charges of, inter alia, conspiracy to distribute marijuana seeds and conspiracy to distribute marijuana. 9 It appears that the US has asserted criminal
33. Ibid. 34. Gilbert, supra note 2 at 112. 35. See Act, supra note 11 at s. 3. See Botting, supra note 23 at 30. In his commentary on the section, BRotting correctly raises the concern that this requirement is subject to the provisions of the particular extradition treaty, which might be looser than is desirable. 36. Botting, supra note 23 at 6. 37. See Brock Martland, Book Review of A Practical Guide to Canadian Extradition by Elaine F. Krivel, Q.C., Thomas Beveridge & JohnW Hayward (2002) 60 Advocate (B.C.) 923 at 924. 38. La Forest, Extradition, supra note 2. 39. Rod Mickleburgh "Prominent pot activist facing extradition to U.S." The Globe and Mail (30 July 2005) A7. BOOK REVIEW COMPTE RENDU DE LECTURE 169
jurisdiction on an extraterritorial basis, and conviction on either charge carries a minimum of ten years in prison, a maximum of life. 40Are either of these aspects of the case acceptable to the Canadian public?41 Is extradition on these terms consistent with the Charter?42 It is questionable whether Canadians know enough to care enough about ask- ing these questions. The extradition practice area is one heavily dominated by the Crown, which negotiates the treaties and effectively writes the legislation, and to use a hackneyed phrase, we must be aware of any "democratic deficit" that arises from this. It is beyond question that criminal justice authorities the world over require sophisticated and far-reaching powers to deal with the perniciousness and tenacity of modern criminal enterprise. However, whether extradition law and practice under- mines Canada's commitment to high human rights standards, both on the interna- tional and domestic planes, is and should be a matter of public concern and scrutiny. On this point, Canadian Extradition Law Practice makes a practical contribution.
RobertJ Currie Faculty of Law, Dalhousie University
40. Ibid. 41. See La Forest, Extradition, supra note 2 at 55-64. This is not to suggest that there is anything necessarily illegal about extraditing to a requesting state whose jurisdiction over the fugitive arises from an extra-territorial criminal law, even on an "objective territoriality" basis. Rather, I am raising the simple political proposition that Canadians might be uncomfortable with the prospect of extraditing a Canadian citizen to face the harsh US anti-drug regime, particularly where the allegedly criminal acts involve marijuana and occurred on Canadian soil. 42. The Supreme Court of Canada held that, in cases under the old legislation, it would not interfere with extraditions involving prison sentences that would not pass constitutional muster in Canada. See United States rJamieson, 11996) 1 S.C.R. 465, 104 C.C.C. (3d) 575; United States .Whitley, [1996] 1 S.C.R. 467, 104 C.C.C. (3d) 447; United States v. Ross, [19961 1 S.C.R. 469, 132 D.L.R. (4') 383. See also Gwynne v. Canada (MinisterofJustice), [1998] B.C.J. No. 222, 103 B.C.A.C. I (C.A.), leave to appeal to S.C.C. refused [19981 S.C.C.A. No. 95; United States v. Latty (2004), 183 C.C.C. (3d) 126, leave to appeal to S.C.C. granted [20041 S.C.C.A. No. 160.